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Prom-inent Considerations for Your School Dance
Prom season is fast approaching – along with myriad related legal issues. Student conduct at prom can be both novel and unpredictable, offering few clear-cut rules. This article nevertheless provides some best practices to assist school officials in navigating common issues that may be associated with the big day.
Attending prom is not a constitutional right. Prom attendance is a privilege, subject to revocation should a student fail to comply with established reasonable conduct standards. A student cannot, however, be precluded from attending prom based on any protected classification (e.g., race, religion, or gender).
Likewise, schools can only regulate student prom dates for non-discriminatory reasons. For example, schools may prohibit students from bringing dates who are currently suspended or expelled from school or adopt a policy that prohibits bringing dates from other schools. Schools may not, however, exclude a prom date based on a protected classification. All policies must be applied uniformly.
Trouble arises when schools refuse to permit same-sex dates. Court decisions have made clear that a school rule against same-sex dates infringes on students’ First Amendment association rights and Title IX’s prohibition against sex discrimination. Beware of imposing such a policy. It may invite legal trouble and media scrutiny.
Schools may impose dress codes at prom to ensure that students wear proper attire and to address legitimate concerns about safety or disruption. Schools may not impose gender-specific dress codes (e.g., female students must wear dresses; male students must wear tuxedos). The imposition of gender-specific dress codes could result in a complaint alleging sex discrimination based on a student’s failure to conform to gender stereotypes. Schools rarely win such cases in the courts or the court of public opinion. Provide notice of any dress codes early, ideally by the time of prom ticket sales.
A school official may initiate a student search if “reasonable suspicion” to do so exists. Any search must be justified at its inception and reasonable in scope. A student strip search is rarely reasonable in scope and may result in the loss of a school official’s qualified immunity, meaning that the official may be held personally liable to the student for money damages.
Breath Alcohol Tests
If a school plans to administer random, suspicionless breath alcohol tests at prom, they should be performed only pursuant to a
policy permitting such searches and after providing advance written notice to students. If your school intends to administer suspicionless breath alcohol tests, we recommend including language directly on prom tickets stating that students consent to random, suspicionless searches, which may include a breath alcohol test, as a condition of entry into prom.
A student who tests positive on a breath alcohol test or appears intoxicated may be excluded from prom. School officials should ensure that any student who is suspected of having consumed drugs or alcohol has a safe ride home.
Some schools have implemented rules prohibiting certain types of dancing (e.g., “twerking” or “grinding”). Clear and uniformly applied rules are generally permitted, but students could challenge dancing restrictions as a violation of their First Amendment right to freedom of expression. Such a challenge has not yet been heard by any appellate court, and a successful lawsuit is unlikely if the rules are reasonable, clear, and uniformly applied to all students.
Like all school policies, rules related to prom must be applied in a uniform and nondiscriminatory manner. A legitimate policy or rule can become the basis for a lawsuit if it is not applied equally to all similarly-situated students. Be sure to remind students that prom is a school-sponsored event, regardless of the location, and that all school rules remain in effect during the dance. Consistent reminders of expected conduct before the dance should help minimize problems on the big night.